Fry v Queensland Police Service
[2016] QDC 33
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- Unreported Judgment
- Fry v Queensland Police Service[2016] QDC 33
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Fry v Queensland Police Service[2016] QDC 33
Fry v Queensland Police Service[2016] QDC 33
DISTRICT COURT OF QUEENSLAND
CITATION: | Fry v Queensland Police Service [2016] QDC 33 |
PARTIES: | BRIDGET MAY FRY (appellant) v QUEENSLAND POLICE SERVICE (respondent) |
FILE NO: | APPEAL NO: 200 of 2015 |
DIVISION: | Appellate |
PROCEEDING: | Appeal |
ORIGINATING COURT: | Magistrates Court, Cairns |
DELIVERED EX TEMPORE ON: | 23 February 2016 |
DELIVERED AT: | Cairns |
HEARING DATE: | 23 February 2016 |
JUDGE: | Morzone QC DCJ |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – appeal – conviction – charges of fraud by dishonestly obtaining property – against sentence – restitution order in addition to custodial sentence – whether manifestly excessive Legislation Justices Act 1886 (Qld), s 222 Penalties and Sentences Act 1992 (Qld), s 35 Cases House v The King (1936) 55 CLR 499 The Queen v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19 The Queen v Matauaina [2011] QCA 344 Irwin v the Commissioner of Police [2015] QDC 136 The Queen v Alexander [2004] QCA 11 |
COUNSEL: | J. Sheridan for the Appellant E. Coker (legal officer) for the Respondent |
SOLICITORS: | Wettenhall Silva Solicitors for the Appellant Office of the Director of Public Prosecutions for the Respondent |
- [1]On 10 November 2015, the appellant was convicted and sentenced after her own plea of guilty in the Magistrates Court held in Cairns in relation to 31 charges of fraud by dishonestly obtaining property being money or credits over a four-month period from 5 March 2014 until 23 July 2014. The total value of her fraudulent conduct was $34,644.46. The maximum penalty for the offence was 12 years’ imprisonment.
- [2]She was sentenced to imprisonment of two years suspended after serving five months with an operational period of two years. She was also ordered to make restitution in the sum of $31,926.26 after accounting for some pre-sentence repayments or reversals.
- [3]The appellant now appeals against the sentence on the grounds that it was manifestly excessive.
- [4]Since the grounds of appeal relate to the restitution order made in favour of the complainant, Archer the Strata Professionals, I directed that that party have notice of the appeal and this hearing and that they be provided an opportunity to be heard in writing, in person or by video or telephone link. The registrar has provided the requisite notice as directed and there is no appearance or other submissions made by that interested party.
Grounds of Appeal
- [5]The appellant asserts that the sentence was manifestly excessive as a result of the magistrate imposing the restitution order in addition to the custodial sentence and the time of actual imprisonment. It is submitted that the magistrate failed to properly consider the appellant’s capacity to repay the restitutionary amount.
Appeal Against Sentence
- [6]This court ought not interfere with a sentence unless it is manifestly excessive, it is vitiated by an error of principle, there has been a failure to appreciate a salient feature or there is otherwise a miscarriage of justice.
- [7]A mere difference of opinion about the way in which the sentencing discretion should be exercised is not a sufficient justification for review. It must be shown that the discretion miscarried. Fundamentally, the appellant must demonstrate some legal, factual or discretionary error.
- [8]
It is not enough that judges comprising the appellate court consider that if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
- [9]Section 35 of the Penalties and Sentences Act 1992 (Qld) provides that a court may make an order that the offender make restitution or pay compensation. This requires consideration of the defendant’s financial circumstances and any burden the order may have to the defendant’s capacity to meet the order. Under subsection 35(1)(b), a court may order compensation in connection with the commission of the offence and such an order may be made in addition to any other sentence to which the offender is liable (section 35(2)).
- [10]Prior to sentence the appellant was able to save and pay $2,647.95 as restitution and she proposed to pay $800 compensation out of commission earned in her employment followed by monthly payments of $600 sourced from her continuing employment. At that time she was carrying personal debt of approximately $15,000.
- [11]In his reasons the magistrate said:[2]
In terms of your current situation and your current rehabilitation prospects, you are currently working at Flight Centre as a travel consultant in Brisbane. You’ve been there for a couple of months now – some four months. You have saved some money to contribute to making restitution. It is said that you can immediately pay some $2,600-odd towards that restitution being sought. That is certainly in your favour. And also Ms Veschetti has outlined, whilst you have some significant credit card debt – debts and a debt to your mother, those two amounting to some $15,000, you can pay approximately $600 per month from your current income. The status of your work at Flight Centre as a travel consultant – it is not clear what happened upon passing sentence. But that level of desire and motivation and certainly how you have adjusted your lifestyle to make restitution is significantly in your favour. As I have indicated, your lack of criminal history – that is, you have no criminal history whatsoever – is a significant matter weighing in your favour.
- [12]Later in his reasons his Honour the magistrate said:[3]
Your prospects of repayment – certainly motivation cannot be questioned that you want to repay and you’ve taken steps to account for that. But it can’t be said that you have extremely good prospects of making quick repayment of that. It would seem the level of restitution which you offer and the scheme in which you offer will take some time to pay off, and it will be of significant hardship upon you as you do. I am going to take your willingness to make restitution as a significant matter in your favour, and I’m going to adjust your sentence for that.
- [13]His Honour apparently recognised several indicia which, coupled with actual imprisonment, would likely render the appellant incapacitated from making restitution beyond her pre-sentence funds. The appellant only had four months in her current job. She had significant personal debt and her proposal was dependent upon continuity of employment. Further, the submissions made below and on appeal were that the appellant’s employment and her capacity to repay would be severed by actual imprisonment. In readiness to make a dignified exit from her employment, she had prepared resignation letters as at the time of the sentence.
- [14]It seems to me that his Honour mistook the facts and failed to take into account the impact of actual imprisonment upon the defendant’s prospects of maintaining or obtaining employment to meet any significant restitution order. For these reasons in my respectful view, the sentencing magistrate erred in exercising the sentencing discretion. The resultant sentence in my respectful opinion was unreasonable or plainly unjust.
Resentence
- [15]In those circumstances, I am required to allow the appeal and to re-exercise the sentencing discretion.
- [16]The appellant was convicted on her own plea of 31 offences of fraud by dishonestly obtaining property from another (against subsections 408C(1)(b) and (2)(c)) committed over approximately four months from about the 5th of March 2014 to the 23rd of July 2014. The maximum penalty for that type of offending is 12 years’ imprisonment.
- [17]The offences occurred in the context of the appellant’s employment. She was employed as an accounts payable officer for a professional body corporate manager, the complainant, Archers the Strata Professionals of Southport. She had been in that employment for about 17 months prior to the offending conduct. Her position can be properly characterised as one of trust. She did not hold the position in a senior capacity. Nevertheless, she was entrusted with password access to the complainant employer’s online banking system.
- [18]Her fraudulent conduct was simple and unsophisticated. Invoices were received by her employer on behalf of creditors to various body corporates which they managed and instead of paying those creditors, the appellant would transfer the funds to her own account. The blatancy of the transaction made it inevitable that it would be discovered. She did this on 31 occasions over about four months accumulating a total amount of $34,644.46. On six occasions the appellant reversed the amount paid providing a credit of $2,718.40 which left a balance outstanding of $31,926.06 lost by her employer. The appellant had left the employ of the complainant before the fraud was discovered. The appellant was 25 at the date of her offending, almost 27 at the time of sentence and is now 27 years old.
- [19]It seems to me that offending of this type is becoming more and more prevalent with the advent of trusted access to online banking facilities on behalf of an employer as well as the general pressures of sustaining living in the current economic and social times. Both a general and personal deterrent factor looms large in the sentencing process of this type of offending.
- [20]The appellant presented at sentence with no criminal history.
- [21]Her personal and family circumstances had caused significant disruption to her life and emotional wellbeing. Her parents separated at a younger age, an event which impacted her greatly. She struggled with a depressive disorder and with a general anxiety disorder at the time of her offending. The psychology report (exhibit 4) assessed the appellant as having a major depressive disorder with co-morbid generalised anxiety disorder. Her ability to cope with her circumstances was poor as evident by her attempts to take her own life as well as her resort to drinking and gambling as a form of coping mechanism. Her circumstances were overlaid by the impact on her health of a blood disorder, namely haemochromatosis, and the pressure of supporting her boyfriend, a foreign national who was restricted in work. This in turn produced financial hardship and she resorted to short-term high interest loans as well as family assistance which saw her financial stability spiral out of control.
- [22]The appellant is well educated. She completed school and commenced a university course, but was for one reason or another unable to complete her university studies.
- [23]In the early stages she led a transient life, engaged in work whenever she could and at the time of sentence she was in new employment in Brisbane with Flight Centre. She had been with that employer for a short four months. As I have mentioned her prospects of retaining that employment have been severed by imprisonment and she is at significant risk of being unemployed as a consequence of this conviction without undertaking some recognised rehabilitation and retraining which may improve her prospects of re-entering the work force.
- [24]The character evidence and the appellant’s own conduct demonstrates significant remorse. Prior to sentence she had saved $2,647.95 (in addition to the voluntary reversals whilst undetected) which she was ready and able to pay towards restitution. However, beyond that and as a consequence of the need to serve actual imprisonment, any further capacity to make restitution has been rendered impotent.
- [25]Her plea was a timely one and she provided a relatively significant degree of cooperation with police and prosecuting agencies which has saved significant time and cost and inconvenience to the community and to the complainant directly impacted by these events.
- [26]The sentence that ought be imposed must comply with the Penalties and Sentences Act 1992 (Qld) such that it is appropriate punishment in the circumstances, facilitate avenues of rehabilitation, deter others from committing a similar offence, make it clear that the community denounces the appellant’s conduct in her offending and protect the community.
- [27]The comparative authorities provided on appeal demonstrate a range for this level of fraudulent conduct of between two to three years imprisonment. Given the lack of sophistication, the amount involved and the short time of the offending conduct, it seems to me that the appellant’s criminality falls in the lower end of the range of cases of similar offending.
- [28]In this appeal reliance has been placed upon the remarks and authority of The Queen v La Rosa; ex parte Attorney-General (Qld) [2006] QCA 19, The Queen v Matauaina [2011] QCA 344, and Irwin v the Commissioner of Police [2015] QDC 136.
- [29]In The Queen v La Rosa; ex parte Attorney-General (Qld), the offender was convicted on her own plea of guilty of stealing money, the property of her employer, over a one and a half year period. The sum involved $51,214.10. At that time the maximum penalty for stealing as a servant was 10 years’ imprisonment. She was originally sentenced to three years’ imprisonment which was wholly suspended for an operational period of three years and she was ordered to make partial restitution by payments of $300 per month for a period of three years. On the Attorney-General’s appeal the Court found that the sentence was manifestly inadequate. The reasons of the Court were delivered by Keane JA (as he then was, with whom de Jersey CJ and Williams JA agreed). His Honour said at paragraph 39:
- [30]In my opinion, the basis on which her Honour sought to characterise the present case is one which did not require the imposition of a sentence of actual imprisonment to give effect to the powerful considerations of general deterrence which apply in relation to the offence of stealing as a servant cannot be sustained. The sentence imposed was manifestly inadequate in relation to the systemic stealing of large amount of money over a lengthy period of time. It therefore falls to this court to resentence the respondent.
- [31]At paragraph [30] His Honour referred with apparent approval to the remarks of Williams JA in The Queen v Alexander [2004] QCA 11 at [24] as follows:
A review of the decisions to which the court was referred indicates that there are a number of factors which have been regarded as relevant in determining the appropriate sentence where dishonesty is involved. On some occasions the critical factor has been the amount of money lost by victims of the fraud, on other occasions the decisive factor has been the persistent and systematic offending. One cannot say that either one of those factors is generally more significant than the other. Each case has to be considered in the light of its own peculiar facts; all one can say is that the amount of money lost and the regularity of offending will always be relevant considerations.
- [32]Earlier in his reasons at paragraph [24] Keane JA said:
It is clear that where an offender has abused a position of trust in order to steal a substantial amount of money over a lengthy period of time, a non-custodial sentence can only be justified in the most exceptional case.
- [33]The appellant places particular reliance upon the decision of Irwin v the Commissioner of Police [2015] QDC 136. That was a decision of a senior judge of this court, his Honour Judge Terry Martin SC, wherein his Honour sets out the relevant guiding principles. That case involved the amount of $16,315.63 being about half of the amount in the present appeal. However, the appellant in Irwin was a treasurer of a community not-for-profit organisation and held a voluntary position of trust. The original sentence of 18 months’ imprisonment suspended after four months was overturned to the extent that the sentence was suspended forthwith on appeal (the appellant having served about 17 days by the time of hearing). In that way his Honour was able to preserve the order for restitution notwithstanding the appellant’s loss of employment by serving actual time in prison.[4]
- [34]In R v Matauaina, Fraser JA (with whom the President and Margaret Wilson AJA as she then was, agreed) wrote the main judgment of the Court including a detailed consideration of the comparative authorities for offences of dishonesty involving amounts up to $50,000. The comparative cases demonstrated a sentencing range of two to three years’ imprisonment.[5] In light of those decisions, the appellant here has not sought to disturb the head sentence imposed by the sentencing magistrate of two years’ imprisonment. Further, it seems to me that two years’ imprisonment as a head sentence is just and appropriate in the circumstances of this case.
- [35]However, the appellant urges upon this court that consideration ought be given to suspending the appellant’s sentence forthwith. She has served approximately two months in custody from the 10th of November 2015 until today. Like all cases, they must turn upon their peculiar facts having regard to the circumstances of the offending and the relevant considerations about the offender whilst applying the appropriate sentencing principles. The significant considerations involving the appellant include her age, the absence of any criminal history, the loss of employment and the likely impact of her conviction on her prospects of obtaining timely future employment, her psychological condition and her efforts to make some restitution. Those considerations, though, ought not override more general principles of sentencing which loom large in cases of this type, especially matters of general and personal deterrence. Here, the appellant, notwithstanding her efforts, will not receive the same level of benefit as a person who had the capacity to make restitution.
- [36]Having regard to all that I have said and imposing a just and appropriate sentence having regard to the appellant’s whole criminal behaviour, it seems to me that the proposed sentence of two years’ imprisonment ought be partially suspended after she serves four months with an operational period of two years. In my view, actual time to that extent served in prison is proportionate to the low level of offending whilst not too crushing upon the appellant in her circumstances.
- [37]I will also make orders for restitution to the extent of the appellant’s post-sentence payment in the amount of $2,647.95.
Conclusion and Orders
- [38]For these reasons, I make the following orders:-
- (1)The appeal is allowed.
- (2)The sentence and orders of the magistrate made on 10 November 2015 are set aside and in lieu the following sentence and orders are made:-
- (a)For each separate charge of fraud by dishonestly obtaining property from another, the appellant is sentenced to two years’ imprisonment to be served concurrently.
- (b)I order that the term of imprisonment be partly suspended after serving four months with an operational period under this order of two years.
- (c)I declare that 105 days spent in custody from the 10th of November 2015 to the 22nd of February 2016 inclusive in relation to the offending is to be imprisonment already served under the sentence and I direct the registrar to inform the Commission of this declaration.
- (d)I order that the appellant make restitution in the sum of $2,647.95 to the clerk of the Magistrates Court at Cairns for transmission to Archers the Strata Professionals.
- (3)It is noted that the appellant has already made restitution in compliance with order (d) above.
Judge D. P. Morzone QC